So Your Client Wants a Divorce

Transcription

NORTH CAROLINA LAW REVIEW
Volume 24 | Number 1
Article 4
12-1-1945
So Your Client Wants a Divorce-Williams v. North
Carolina
Herbert R. Baer
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Herbert R. Baer, So Your Client Wants a Divorce-Williams v. North Carolina, 24 N.C. L. Rev. 1 (1945).
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1945]
SO YOUR CLIENT WANTS A DIVORCE!
WILLIAM S v. NORTH CAROLINA
HERBERT
R. BAER*
One out of every five marriages in the United States during the
past ten years has terminated in divorce. It has been estimated that in
1946 the proportion will be one divorce to every three marriages.
Whereas in 1936 the total number of divorces in this country was
236,000 it'seems fairly certain that this number will be doubled in
1946, some statisticians estimating that as many as 575,000 divorces
will be granted in that year.' Expressed in another way, the legal
profession will be called upon to aid in the severance of the bonds of
matrimony in twice as many cases in 1946 as in 1936. By far the
greater number of the divorces will be uncontested. It is with the
validity of the uncontested divorce that the attorney will be primarily
concerned.
"How good will my divorce be ?" in one form or another will be
the question the divorce counsellor will be called upon to answer. With
an increasing volume of divorce litigation assured it would be extremely desirable to find greater certainty as to the validity of. the
divorce itself but unfortunately it now appears that when 'certainty is
most desired it is least to be found. In State v. Williams,2 North
Carolina has given the nation the divorce case which has twice produced vigorous dissents in the United States Supreme Court and which
promises to be the most influential case, be it for good or ill, that has
appeared in the divorce field during the past generation. The careful
practitioner will not wish to undertake divorce litigation without an
appreciation of the problems passed upon by the court in the Williams
case. The facts are not unusual but typical of those found in the
ordinary uncontested Nevada divorce proceeding.
* Professor of Law, University of North Carolina.
For a detailed statistical study of the divorce rate in the United States see
Davis, Sociological and Statistical Antalysis (1944) 10 LAW AND CONTEMPORARY
PROBLEsS 700 at 710 et seq. Professor Davis' article is one of several making
up a symposium entitled Children of Divorced Parents.
It should be noted that the predictions of the statisticians did not take into
account the end of World War Two in 1945. The return of veterans who married in haste before leaving for overseas will result in many marriages being
disrupted through legal processes which would have continued in existence
otherwise.
-'Originally reported in 220 N. C. 445, 17 S. E. (2d) 769 (1941); reversed
in Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207, 87 L. ed. 279
(1942); reported on appeal from second trial in 224 N. C. 183, 29 S. E. (2d)
744; affirmed 324 U. S. -, 65 S. Ct. 1092, 89 L. ed. 1123 (1945).
THE
[VCol. 24
FACTUAL BACKGROUND
In 1916 Otis B. Williams and Carrie Wyke were married in
Caldwell County, North Carolina. There they raised a family of four
children and lived together as man and wife until May 7, 1940. Williams
was the proprietor of a store at Granite Falls in that county and had
in his employ one Thomas G. Hendrix. Hendrix married Lillie Shaver
at Icard, North Carolina, in 1920. He and his wife made their home
in Caldwell County and likewise lived there together until May 7,
1940. On that date both Mrs. Hendrix and Mr. Williams disappeared
from their respective homes.
The record does not show whether they journeyed westward together but we are told that on May 15, 1940, Williams and his employee's wife, Mrs. Hendrix, "established a residence" at the Alamo
Court,3 Las Vegas, Nevada. Exactly six weeks after their arrival in
Nevada each filed a petition for divorce in that state. The same
counsel 'represented them and each charged "extreme cruelty" as the
4
ground for divorce.
Neither of the defendants in these divorce suits was served with
process in Nevada and neither entered an appearance in the Nevada
proceedings. An order providing for service by publication was made
in each case. The defendant, Thomas Hendrix, had written a post
card to his wife's counsel in Nevada saying, "Upon receipt of the original appearance, I will sign the same." This he never did. Service was
made on him by publishing a copy of the summons in a Las Vegas
newspaper and mailing to him a copy of the summons and complaint.
The defendant, Mrs. Williams, was personally served in North Carolina with a copy of the summons and complaint in her husband's suit
by a sheriff of Caldwell County, North Carolina. It does not appear
that any publishing was had in her case.
In this situation the divorce actions proceeded as uncontested and
on August 26, 1940, a decree of absolute divorce was granted by the
Nevada court to Mr. Williams. Mrs. Hendrix obtained her decree of
absolute divorce on October 4, 1940, and on the same day she and
Williams were married in Nevada. Almost immediately after this marriage, Williams and his new "bride" made the journey back,, estab'It appears from an affidavit of residence filed in the Nevada proceeding by
Lillie Roesselet in behalf of Mrs. Hendrix that the Alamo Court was in fact
an Auto Court. This circumstance is stressed here and there throughout the
proceedings by those who wish to emphasize the transitory character of the
residence in Nevada. See transcript of record p. 21 in 220 N. C. 445 and dissent
of Justice Jackson in 317 U. S. 287, 321.
'Cruelty is not a ground for absolute divorce in North Carolina, but it is a
ground for a divorce from bed and board. N. C. GEN. STAT. (1943) §§50-5, 50-6,
50-7.
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3
lished their home at Pineola, Avery Ciunty, North Carolina, and lived
together as man and wife.
These were the facts which led to an indictment for bigamous cohabitation against both Mr. Williams and Mrs. Hendrix under Section 4342
of the 1939 North Carolina Code.5 These were the facts which ulti,mately resulted in two trials in North Carolina, convictions at both
trials, a reversal of the convictions by a divided United States Supreme
Court after the first trial and an affirmance of the convictions by the
United States Supreme Court, once again divided, after the second
trial. We shall follow the course of the litigation chronologically.
THE FIRST TRIAL
The first trial was held before Judge Sink of the Caldwell Superior
Court at the February-March Term, 1941. The state called six witnesses, the defendants none. In fact, neither of the defendants took
the stand. For the state Mrs. Williams and Mr. Hendrix testified
to their respective marriages with the defendants. Next the state
introduced an exemplified copy of the marriage certificate of Mr.
Williams and Mrs. Hendrix in Nevada, and lastly it called four witnesses "iAose testimony was to the general effect that the defendants
were livipg together as man and wife in Pineola, North Carolina.
At the close of the state's case motions for judgments as of nonsuit were made and denied.
The defendants offered three exhibits, the card sent by Mr. Hendrix to his wife's attorney and exemplified copies of the divorce proceedings in each case. That was all. The defendants renewed their
motions for judgment as of nonsuit which were again denied.
Judge Sink then charged the jury and said that the state of North
Carolina attacked the validity of the Nevada divorces on two grounds,
(1) that the Nevada decrees were invalid because neither of the defendants in the Nevada divorce proceedings had been served with
process in Nevada or entered an appearance in the Nevada actions,
and (2) that Williams and Mrs. Hendrix had not established a bona
fide residence in Nevada but had gone there solely for the purpose of
taking advantage of the laws of that state to obtain a divorce through
fraud upon that court.8 He further charged that as a matter of law
'The pertinent portion of the statute now designated as N. C. GEN. STAT.
(1943)
§14-183 states:
. . If any person, being married, shall contract a marriage with any other
person outside of this state, which marriage would be punishable as bigamous if
contracted within this state, and shall thereafter cohabit with such person in this
state, he shall be guilty of a felony, and shall be punished as in cases of bigamy.
Nothing contained in this section shall extend . . . to any person who at the
time of such second marriage shall have been lawfully divorced from the bond
of the first marriage....
'Transcript of record p. 42 in 220 N. C. 445.
.
[Vol. 24
a Nevada divorce decree based on substituted service where the defendant made no appearance would not be recognized in North Carolina
under the rule of the Pridgen7 case. In regard to the State's second
contention, he charged that the defendants had the burden of satisfying
the jury, but not beyond a reasonable doubt, of the bona fides of their
residence in Nevada, citing State v. Herron.8 The court doubtless used
the word residence here in the sense of domicile. 9
On these instructions the jury rendered a general verdict of guilty.
It was impossible to say on which of the two theories the defendants
were found guilty. There was no express finding by the jury on the
question of the bofia fides of the Nevada residence (domicile). The
jury might have found a bona fide residence in Nevada and yet under
the first portion, of the court's charge returned a verdict of guilty because no personal service had been made on or appearance entered in
Nevada by the defendants in the divorce suits.
Upon the rendition of the verdicts, Judge Sink imposed sentences
which must surely have impressed the defendants with the verity
of the old adage, "the course of true love is never smooth," and which,
to say the least, should cause lawyers to be overly cautious when advising on the validity of out-of-state divorces. For Williams the
penalty imposed was not less than three nor more than ten years at
hard labor in State Prison. Mrs. Hendrix was ordered confined for
not less than three nor more than five years in State Prison, there to
perform labor as provided for women prisoners. 10
Pridgen v. Pridgen, 203 N. C. 533, 166 S. E. 591 (1932). In the Pridgen
case an action was brought by plaintiff to annul his marriage with the defendant
on the ground that the defendant had another husband living at the time she
contracted the marriage with the plaintiff. It appeared that the defendant had
been married'to one Dowd in North Carolina in 1907, that Dowd had left North
Carolina, became domiciled in Georgia and there sued his wife who remained in
North Carolina for a divorce. The wife did not appear in Georgia and only
constructive service was had. In the suit to annul the trial court. charged -that
the Georgia divorce was binding and that therefore the defendant wife did not
have a husband living when she contracted the marriage sought to be annulled.
The Supreme Court reversed on the theory that a divorce obtained on constructive service where the defendant spouse is domiciled in North Carolina is not
valid in this state and that therefore the second marriage will be declared void.
B175 N. C. 754, 94 S. E. 698 (1917). The prosecution in the Herron case
was based on the same statute as that in the Williams case. The defendant relied
on a divorce he had obtained in Georgia. The State offered evidence that the
defendant was not a bona fide resident of Georgia but had in fact maintained his
residence in North Carolina being in Georgia but a few weeks. Georgia required
a twelve months' residence in divorce matters. The conviction was sustained on
the theory that the North Carolina jury was free to look into the existence of a
bona fide domicile in Georgia irrespective of whatever finding had been made
by the Georgia court.
I Thus in the Herron case (supra note 8) the North Carolina Supreme Court
said, "The defendant could not leave this State, go to Georgia, remaining there
a few days or weeks at a time, but spending practically all of his time in this
State, and thereby obtain a bona fide domicile in Georgia." 175 N. C. 754, 759,
94 S. E. 698, 701 (1917).
"0Transcript of record p. 51 in 220 N. C. 445.
SO YOUR-CLIENT WANTS A DIVORCE!
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APPEAL TO STATE SUPREME COURT FOLLOWING FIRST TRIAL
An appeal was promptly taken to the State Supreme Court. That
Court affirmed the convictions primarily, if not entirely, on the ground
that the Nevada decrees were not entitled to full faith and credit in
North Carolina because they had been obtained on constructive service.
and no appearance had been entered in the divorce proceedings by the
defendants in those cases." Justice Clarkson wrote the opinion for the
court. The bulk of his opinion is devoted to sustaining the convictions
on the theory that a state in which the plaintiff alone is domiciled cannot grant a divorce which will be entitled to full faith and credit when
the defendant is only served with process constructively and makes
no appearance in the action. Although at the close of his opinion he
says, "All the evidence indicates collusion between the defendants, and
bad faith in attempting to secure decrees of divorce, contrary to the
laws of this State,' 2 it is clear he would have sustained the convictions
even if the defendants had obtained bona fide domiciles in Nevada. This
appears from the following paragraph of his opinion:
"The sole question arising under Article IV, section 1 of the Federal
Constitution in this case is whether a divorce granted in the state
where the plaintiff alone is domiciled is entitled to full faith and credit
when the defendant is only served with process constructively and
makes no appearance in the action. This question is answered in the
negative by the celebrated case of Haddock v. Haddock, 201 U. S.
13
562, justly recognized as a landmark in the law of foreign divorces."
Justice Barnhill wrote a concurring opinion in which Chief Justice
Stacy and Justice Winborne joined. He said nothing about the bona
fides of the Nevada residence but rested his opinion entirely on the
theory that the Nevada decrees were not entitled to full faith and credit
because of lack of personal service on or -appearance by the defendants
to the divorce proceedings in Nevada. He, too, cited the Haddock case
as controlling authority. 14
Haddock v. Haddock' 5 was decided by the United States Supreme
Court in 1906. It was the overruling of that case in 1942 that resulted
in the United States Supreme Court reversing the judgments of conviction in the first Williamts case.' 0 A brief examination of the Haddock
case is therefore in order.
220 N. C. 445, 17 S. E. (2d) 769 (1941).
12220 N. C. 445, 462, 17 S. E. (2d) 769, 780 (1941).
N. C. 445, 459, 17 S. E. (2d) 769, 777 (1941).
24220
14
Justice Barnhill also cited numerous North Carolina authorities including
the then recent case of Tyson v. Tyson, 219 N. C. 617, 14 S. E. (2d) 673 (1941)
in which a Florida divorce was held invalid in North Carolina because it had
been made on constructive service against a resident of North Carolina.
15201
U. S. v.562,
26 S.Carolina,
Ct. 525, 317
50 L.U.ed.S. 867
' 6 Williams
North
287,(1906).
63 S. Ct. 207, 87 L. ed. 279
(1942).
[Vol. 24
Haddock and his wife were married in New York state where they
both were domiciled. The parties separated shortly after the marriage
and Haddock went to Connecticut where he obtained a bona fide domidie. There he sued his wife for a divorce. Service was by publication, Mrs. Haddock remaining in New York state. Haddock was
granted an absolute divorce by the Connecticut court. Later, Mrs.
Haddock succeeded in getting personal service on Haddock in New
York in a suit brought by her for separation and alimony in which
she charged abandonment. Haddock pleaded the Connecticut decree
as a bar. The New York court excluded evidence of the Connecticut
decree, found as a fact that Haddock had abandoned his wife and
awarded a judgment for separation and alimony. The United States
Supreme Court by a close margin, five to four, sustained the judgment
of the New York court. In doing so it laid down the following rules as
already established by Supreme Court decisions:
1. Where husband and wife are domiciled in the same state that
state has jurisdiction to grant17 a divorce which is entitled to full faith
and credit in all other states.
2. Where either the husband or wife acquires a bona fide domicile
in another state a decree of divorce granted by such state is entitled
to full faith and credit provided the court has obtained personal jurisdiction of the defendant who is not domiciled therein 1 8
3. Where the plaintiff is merely a resident but not. domiciled in a
state, that state may not grant a decree of divorce from the non-resident
defendant which would be entitled to full faith and credit. 19
The holding in the Haddock case resulted in a fourth rule, namely:
4. A decree of divorce rendered by a state in which the husband
has a bona fide domicile is not entitled to full faith and credit in the
state of matrimonial domicile where the wife still resides when itappears
that the husband has abandoned his wife and that she has not been per-1
sonally served.
The Court in the Haddock case further stated that it did not
question the power of the State of Connecticut to enforce Tthin its
own borders the decree of divorce nor did it doubt that,-New York
State could if it wished under its public policy give the decree efficacy
in New York. It definitely asserted, however, that such decree was
"'For this statement the court did not cite any particular authority but
stated that the proposition there declared "was no longer open to question."
201 U. S. 562, 570, 26 S. Ct. 525. 527, 50 L. ed. 867, 870 (1906).
" 201 U. S. 562, 570, 26 S. Ct. 525, 527, 50 L. ed. 867, 870 (1906), citing
Cheever v. Wilson, 9 Wall. 108, 19 L. ed. 604 (1869).
19 201 U. S. 562, 583, 26 S. Ct. 525, 533, 50 L. ed. 867, 875 (1906), citing
Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. ed. 366 (1903) ; Streitwolf v. Streitwolf, 181 U. S. 179, 21 S. Ct. 553, 45 L. ed. 807 (1900) ; and Bell
v. Bell, 181 U. S. 175, 21 S. Ct. 551, 45 L. ed. 804 (1900).
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not entitled to full faith and credit in New York under the constitu20
tional provision.
The result of the Haddock decision was that the parties for practical purposes were divorced in Connecticut and married in New York.
Further, whether New York was required to give full faith and credit
to the decree depended on the existence or non-existence of Haddock's
fault. If he had not abandoned his wife, if she-had improperly refused
to accompany him to Connecticut, the Connecticut domicile of Haddock
would have become the domicile of his wife. 21 Connecticut in such
case, as the state of domicile of both parties, could give a divorce
entitled to full faith and credit elsewhere. In view of such a tenuous
basis for decision it is not surprising to find the voluminous dissents of
Justice Holmes and Justice Brown concurred in by the two remaining
minority justices.
Despite the strong dissents in the Haddock case and criticism by
able writers, 22 the Haddock case remained as "law" until some thirtysix years later when in 1942 the difficulties of Mr. Williams and Mrs.
Hendrix were brought to the United States Supreme Court.
FIRST APPEARANCE OF THE WILLIAMS CASE IN THE
UNITED STATES SUPREME COURT
Certiorari having been allowed to our now genuinely troubled defendants, the United States Supreme. Court rendered its decision on
December 21, 1942.23 No Christmas present could have been more
welcome to Williams and Mrs. Hendrix. The stigma of bigamy and
the long prison years confronting them were at least temporarily, if not
permanently, removed. The last brief paragraph of the opinion carried the good news:
"Haddock v. Haddock is overruled. The judgment is reversed and
" It is important to note that the Haddock case did not involve a criminal
prosecution under a bigamy statute but is a suit brought by a wife for separation
and alimony. The case, therefore, is not on "all fours" with the Williams case.
Because of this it has been suggested that the United States -Supreme Court
did in fact not overrule the Haddock case when it decided the first Williams case
See note on this in
in 317 U. S. 287, 63 S. Ct. 207, 87 L. ed. 279 (1942).
45 Coi- L. Ray. 797 (1945).
21201 U. S. 562, 570, 26 S. Ct. 525, 527, 50 L. ed. 867, 870 (1906).
Professor Beale has written profusely on the Haddock case. Originally he
was against it but later saw considerable merit in the decision. Justice Jackson
in his dissent in the first Williams case, 317 U. S. 287, 316, 63 S. Ct. 207, 221,
87 L. ed. 279, 295 (1942) strenuously objected to departing from Haddock and in
referring to the academic criticism accorded the decision said:
"It was twenty years before Professor Beale could justify the decision to his
satisfaction. Compare Haddock Revisited, 39 HARVARD LAW REVIEW 417. with
Beale, ConstitutionalProtection of Decrees for Divorce, 19 tHARvARD LAW REVIEW
586. Others seem to lack his capacity for quick adjustment."
a' Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207,- 87 L. ed. 279
(1942).
[Vol. 24
the cause is remanded to the Supreme Court of North Carolina for
proceedings not inconsistent with this opinion." 2 4
If only the paragraph had ended after the word "reversed" the
jubilation of the defendants could well have been unrestrained, but
there was potential danger hidden in those formal words, "remanded
... for proceedings not inconsistent with this opinion." We pass then
to the majority opinion delivered by Justice Douglas.
MAJORITY UNITED STATES SUPREME COURT OPINIONFIRST WILLIAMS CASE
Justice Douglas speaking for the majority said at the outset of his
opinion that in view of the dual nature of the trial court's charge and
the general verdict it was impossible to tell whether the defendants had
been convicted on the theory that the Nevada decrees were invalid because no personal service had been had or because the defendants had
not acquired a domicile in Nevada.2 5 He also stated that North Carolina did not seek to sustain the judgments on the ground of lack of
personal service but attacked their validity on the theory of the Haddock
case, conceding "that there probably is enough evidence in the record
to require that petitioners be considered 'to have been actually domiciled in Nevada.'"26 Accordingly the court stated it must treat the
case as if the defendants had acquired domiciles in Nevada. The precise question was therefore raised-is the Haddock case to be followed?
If it is, the convictions should be sustained, for the divorce decrees,
however valid in Nevada, would not be entitled to full faith and credit
in North Carolina.
No sooner did the court put the question than it was answered.
"We do not agree with the theory of the Haddock case, that so far
as the marital status of the parties is concerned a decree of divorce
granted under such circumstances
by one state need not be given full
'27
faith and credit in another."
Let us examine the process by which the majority concluded that
Haddock must be overruled. We are told that Article IV, Section 1
of the Constitution 28 requires that "not some but fidl faith and credit
be given judgments of a state court" that even though the cause of
action "could not be entertained in the state of the forum either because
it had been barred by the local statute of limitations or contravened
' 317 U. S. 287, 304, 63 S. Ct. 207, 216, 87 L. ed. 279, 289 (1942).
25317 U. S. 287, 291, 63 S. Ct. 207, 209, 87 L. ed. 279, 281 (1942).
28317 U. S. 287, 291, 63 S. Ct. 207, 210, 87 L. ed. 279, 282 (1942).
2,317 U. S. 287, 293, 63 S. Ct. 207, 210, 87 L. ed. 279, 283 (1942).
28 U. S. CONsT. Art. IV, §1 states: "Full faith and credit shall be given in
each state to the public acts, records, and judicial proceedings of every other
state. And the Congress may by general laws prescribe the manner in which
such acts, records and proceedings shall be proved, and the effect thereof."
1945]
local policy, the judgment thereon obtained in a sister state is entitled
to full faith and credit" and that to this rule "the actual exceptions
29
have been few and far between apart from Haddock v. Haddock.
A judgment of any state presupposes jurisdiction of that state
to render such judgment. If the Nevada decrees are to be given full
faith and credit it must first be determined whether or not the Nevada
courts had jurisdiction to render the decrees. The jurisdictional basis
for divorce is said to be domicile.
"Domicil of the plaintiff ... is recognized in the Haddock case and
elsewhere . . . as essential in order to give the court jurisdiction which
will entitle the divorce decree to extraterritorial effect, at least when
the defendant has neither been personally served nor entered an appearance." 30
What about the domicile of the divorce suit plaintiffs in this case?
Had they acquired a domicile in Nevada? What did the Nevada,
court find as to that question?
The Nevada statute required "residence" 31 for a specific period.
The Nevada decrees contained a specific finding ". . . that the plaintiff
is now and has been a bona fide resident of the County of Clark, State
of Nevada for more than six weeks immediately preceding the commencement of this action." 3 2 These recitals are said by the majority
to be equivalent to a finding of domicile.
"The findings made in the divorce decrees in the instant case must
be treated on the issue before us as meeting those requirements. For
it seems clear that the provision of the Nevada statute that a plaintiff
in this type of case must 'reside' in the State for the required period
requires him 33
to have a domicil as distinguished from a mere residence
in the state."
"-317U. S. 287, 295, 63 S. Ct. 207, 211, 87 L. ed. 279, 284 (1942).
(Italics
our own.)
:0 317 U. S. 287, 297, 63 S. Ct. 207, 213, 87 L. ed. 279, 285 (1942).
'Sec. 9460, NEv. ComP. L. 1929, as amended L. 1931, p. 161, provides in
part: "Divorce from the bonds of matrimony may be obtained by complaint, under
oath, to the district court of any county in which the cause therefor shall have
accrued, or in which the defendant shall reside or be found, or in which the
plaintiff shall reside, or in which the parties last cohabited, or if plaintiff shall
have resided six weeks in the state before suit be brought, for the following
causes, or any other causes provided by law. . .
."
Sec. 9467.02 provides that
the court shall require corroboration of the evidence of residence in all civil
cases where the jurisdiction of the court depends upon the residence of one of
the parties to the action.
32 Transcript of record p. 17 in 220 N. C. 445. The quoted language is taken
from the decree granted Mrs. Hendrix. Language slightly different but of
equivalent import is also found in the decree awarded Mr. Williams, transcript
of record p. 35.
"s317 U. S. 287, 297, 63 S. Ct. 207, 213, 87 L. ed. 279, 285 (1942). (Italics
our own.) The Court here cited Latterner v. Latterner, 51 Nev. 285, 274 P. 194
(1929) and Lamb v. Lamb, 57 Nev. 421, 65 P. (2d) 872 (1937).
[Vol. 24
Having found that Nevada courts deemed Williams and Mrs. Hendrix domiciled in Nevada the majority proceeds to consider the interests of a state in its domiciliaries.
"Each state as a sovereign has a rightful and legitimate concern in
the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. . . . Thus
it is plain that each state, by virtue of its command over its domiciliaries
and its large interest in the institution of marriage, can alter within its
own borders the marriage status of the spouse domiciled there, even
though the other spouse is absent. . . .It follows that, if the Nevada
decrees are taken at their full face value (as they must be on the phase
of the case with which we are presently concerned), they were wholly
effective to change in that state the marital status of the petitioners and
each of the other spouses by the North Carolina marriages. '3 4
To that point the court is in accord with the Haddock case. But
then comes the departure.
"But the concession that the decrees were effective in Nevada makes
more compelling the reason for rejection of the theory and result of
the Haddock case. _.. A husband without a wife, or a wife without a
husband, is unknown to the law... but if one is lawfully divorced and
remarried in Nevada and still married to the first spouse in North Carolina, an even more complicated and serious condition would be realized.
... Under the circumstances of this case, a man would have two wives,
a wife two husbands. The reality of a sentence to prison proves that
that is no mere play on words. Each would be a bigamist for living in
one state with the only one with whom the other state would permit
him lawfully to live. Children of the second marriage would be bastards in one state but legitimate in the other."3 5
All of the absurd situation depicted above flows, says the majority,
from the "legalistic notion that where one spouse is wrongfully deserted
he retains power over the matrimonial domicile so that the domicile of
the other spouse follows him wherever he may go while if he is to
blame he retains no such power ...the fault or wrong of one spouse
in leaving the other becomes under that view a jurisdictional fact on
which this court would ultimately have to pass."3 6 Tile court casts
out this "legalistic notion" and says, "We see no reason, and none has
here been advanced for making the existence of state power depend on
'3
an inquiry as to where the fault in each domestic dispute lies."
Domicile and not fault is the basis of jurisdiction. Assuming
Williams and Mrs. Hendrix were bona fidely domiciled in Nevada, as
-,317 U. S. 287, 298, 63 S. Ct. 207, 213, 87 L. ed. 279, 286 (1942). (Italics
our 5own.)
' 1Id. at 299, 63 S. Q. at 213, 87 L. ed. at 286 (1942).
'8 Id. at 300, 63 S. Ct. at 214, 87 L. ed. at 287 (1942).
17Id.
at 301, 63 S. Ct. at 214, 87 L. ed. at 287 (1942).
1945]
the court does assume for the purpose of its decision, the Nevada
decree must be given full faith and credit by North Carolina. "It is
difficult," said the majority, "to perceive how North Carolina could be
said to have an interest in Nevada's domiciliaries superior to the interest
of Nevada."3 8 And further, "in the first place we repeat that in this
case we must assume that petitioners had a bona fide domicil in
Nevada and not that the Nevada domicil was a sham." 39 Then the
court inserted the sentence which invited the position taken by North
Carolina at the second Williams trial. "Nor do we reach here the question as to the power of North Carolina to refuse full faith and credit
to Nevada divorce decrees because, contrary to the finding of the
Nevada court, North Carolina finds that no bona fide domicile was
acquired in Nevada." 40 That was to be left for later decision.
If a bona fide domicile was acquired by Williams and Mrs. Hendrix in Nevada and such bona fides is found by both Nevada and North
Carolina it is clear that under the majority holding Nevada will have
severed the marriage bond not only as to Nevada but as to every state
in the Union, at least every state that finds the domicile in Nevada
was bona fide. This being so the vice anticipated in the Haddock case
is present for as the court there said, "Under the rule contended for it
would follow that the states whose laws were the most lax as to length
of residence required for domicile, as to causes for divorce and to speed
or procedure concerning divorce, would in effect dominate all the other
41
states."
Justice Douglas for the majority admits this is so but says, "It
is an objection in varying degrees of intensity to the enforcement of a
judgment of a sister state based on a cause of action which could not
be enforced in the state of the forum. Mississippi's policy against
gambling transactions was overridden in Fauntleroy v. LUm 42 when a
Missouri judgment based on such Mississippi contract was enforced
by this court. Such is part of the price of our federal system. ' 43
Summing up the majority opinion amounts to this:
1. Domicile of one of the parties is the necessary jurisdictional element and the wrong or fault of the person establishing such domicile is
immaterial to jurisdiction.
2. Nevada having found that- Williams and Mrs. Hendrix were
domiciled in Nevada may grant a divorce decree which in the absence
8
Id. at
at 296,
63 S.
S. Ct.
Ct. atat 215,
212, 8787 L.
L. ed.
ed. atat288
284 (1942).
(1942).
81Id.
302, 63
'Old.at 302, 63 S. Ct. at 215, 87 L. ed. at 288 (1942).
1" Haddock v. Haddock,
201 U. S. 562, 574, 26 S. Ct. 525, 529, 50 L. ed.
867,"210
871 U.
(1906).
S. 230, 28 S. Ct. 641, 52 L. ed. 1039 (1908).
"317 U. S. 287, 302, 63 S. Ct. 207, 215, 87 L. ed. 279, 288 (1942).
[ Vol. 24
of a contrary finding on domicile by North Carolina must be given full
faith and credit in that state.
3. Whether North Carolina may refuse to give full faith and credit
to the Nevada decree if it, contrary to Nevada, finds the parties were
not domiciled in Nevada is not now passed on by the court. That will
be decided later-meanwhile the case is remanded to the North Carolina Supreme Court which presumably will direct an inquiry be made
at a44new trial on the existence or non-existence of the Nevada domicile.
THE FRANKFURTER CONCURRING
OPINION-FIRST WILLIAMS CASE
Justice Frankfurter filed a brief opinion in which he stated he concurred with the majority but deemed it appropriate to "add a few
words."'45 He is well aware of the confusion existing in divorce law
but concludes that such confusion is the subject of legislative corrective
measures and is not to be completely removed by judicial decision.
"Judicial attempts to solve problems that are intrinsically legislative
-because their elements do not lend themselves to judicial judgment or
because the necessary remedies are of a sort which judges cannot prescribe-are, apt to be as futile in46 their achievement as they are presumptuous in their undertaking."
The real remedy lies in national legislation. Perhaps, Justice
Frankfurter suggests, it is now time to amend our Constitution to
enable Congress to enact laws on marriage and divorce. He refers to
such power as now being vested in the national legislatures of Canada
and Australia. Until such powers are given he finds but one way in
which the Supreme Court can contribute uniformity to the law of
marriage and divorce and "that is to enforce respect for, the judgment
of a state by its sister states when the judgment was rendered in accordance with settled procedural standards . . . if a judgment is binding in
47
the state where it was rendered, it is binding in every other state."
If the Nevada proceedings had not conformed with settled procedural standards, if there had in other words been no due process,
then North Carolina would not be required to respect the judgment
of Nevada,
"But in this case aJl talk about due process is beside the mark....
It is precisely because the Nevada decrees do satisfy the requirements
of the Due Process Clause and are binding in Nevada upon the absent
"' The North Carolina Supreme Court in due course vacated the judgments of
conviction and in turn remanded the cause for a new trial in accordance with
the United States Supreme Court opinion. State v. Williams, 222 N. C. 609,
24 S. E. (2d)'256 (1943).
"317 U. S. 287, 304, 63 S. Ct. 207, 216, 87 L. ed. 279, 289 (1942).
"Id.
at 305, 63 S. Ct. at 216, 87 L. ed. at 290 (1942).
'T Id. at 306, 63 S. Ct. at 216, 87 L. ed. at 290 (1942).
(Italics our own.)
1945]
spouse that we are called upon to decide whether these judgments,
unassailablein the state which retidered them, are, despite the commands
of the Full Faith and Credit Clause, null and void elsewhere." 48
Further Justice Frankfurter points out that,
"'... no claim was made here on behalf of North Carolina that the
decrees were not valid in Nevada. It is indisputable that the Nevada
decrees here, like the Connecticut decree in the Haddock case, were
valid and binding in the state where they were rendered." 49
As to Haddock itself we are told,,
"In denying constitutional sanction to such a valid judgment outside
the state which rendered it, the Haddock decision made an arbitrary
break with the past and created distinctions incompatible with the role
of this Court in enforcing the Full Faith and Credit Clau~e." 5 °
The problem seems to be fairly simple to Justice Frankfurter at
the time of his concurring opinion in the first Williams case for he
finds that "Freed from the hopeless refinements introduced by that
case (Haddock), the question before us is simply whiether the Nevada
decrees were rendered under circumstances that would make them
binding against the absent spouse in the state where they were rendered."51
But that question was already answered by him in the affirmative,
"It is indisputable that the Nevada decrees here . . . were valid and
binding in the state where they were rendered." 52 He then concludes
that North Carolina has failed to "respect" the consequences of Nevada
exerting her power to declare the marital status of one of its" domiciliaries.
One further reference to Justice Frankfurter's opinion. Speaking
of Congress he said, "[But] Congress has not exercised its power
under the Full Faith and Credit Clause to meet the special problems
raised by divorce decrees. There will be time enough to consider the
scope of its power in this regard when Congress chooses to exercise
it." 53 Is this a suggestion that Congress attempt divorce legislation
without a Constitutional amendment?
THE MURPHY DISSENT-FIRST
WILLIAMS CASE
Justice Murphy filed a dissent, the main theme of which was that
each state should be free to apply its own policies within its own area
as regards its own citizens. "Both Nevada and North Carolina have
18 Id. at 306, 63 S. Ct. at 217, 87 L. ed. at 290 (1942). (Italics our own.)
"9Id. at 306, 63 S. Ct. at 217, 87 L. ed. at 290 (1942).
"Old. at 307, 63 S. Ct. at 217, 87 L. ed. at 290 (1942).
Id. at 307, 63 S. Ct. at 217, 87 L. ed. 'at 290 (1942).
"'Id.at 307, 63 S. Ct. at 217, 87 L. ed. at 290 (1942).
z3Id. at 306, 63 S. Ct. at 217, 87 L. ed.'at 290 (1942).
5
(Italics our own.)
(Italics our own.)
[Vol. 24
rights" with regard to the marriage relations of their citizens. The conflict between those rights "should not be resolved by extending into
North Carolina the effects of Nevada's action through a perfunctory
application of the literal language of the Full Faith and Credit Clause
with the result that measures which North Carolina has adopted to safeguard the welfare of her citizens in this area of legitimate governmental
concern are undermined." 54
The ,application of the Full Faith and Credit Clause has not prevented two states claiming domicile in taxation cases; and Justice Murphy sees no more incongruity in holding the parties validly divorced in
Nevada and not divorced in North Carolina than appears where a
person who admittedly can have but one domicile is taxed in two
jurisdictions, each of which prevails against the harassed taxpayer who
is denied relief by the Supreme Court.5 5 "The fair result," concludes
Justice Murphy, "is to leave each [state] free to regulate within its
56
own area the rights of its own citizens."
justice Murphy admits that a divorce decree rendered by the state
of bona fide domicile of one of the parties has heretofore been entitled
to recognition in sister states under the Full Faith and Credit Clause.
But even if that be so the answer to the Willianm case is simple to the
Justice for to him it is clear that Williams and Mrs. Hendrix had not
acquired a bona fide domicile in Nevada.
"Did petitioners acquire a bona fide domicile in Nevada? I agree
with my brother Jackson that the only proper answer on the record
is, no. North Carolina is the state in which petitioners have their
roots, the state to which they immediately returned after a brief absence just sufficient to achieve their purpose under Nevada's requireto no extraments. It follows that the Nevada decrees are entitled
' r7
territorial effect when challenged in another state."
51 Id. at 310, 63 S. Ct. at 218, 87 L. ed. at 292 (1942).
" Justice Murphy here cites Worcester County Trust Co. v. Riley, 302 U. S.
292, 58 S. Ct. 185, 82 L. ed. 268 (1937). In the Dorrance Estate litigation the
estate was required to pay inheritance taxes of approximately $17,000,000 to both
the states of New Jersey and Pennsylvania each of which claimed and found the
deceased was domiciled within its borders. The Supreme Court of the United
States denied relief to the doubly harassed taxpayer. See In re Dorrance's
Estate, 115 N. J. Eq. 268, 170 A. 601 (1934), affirmed Dorrance v. Martin,
13 N. J. Misc. 168, 176 A. 902 (1935), certiorari denied Dorrance v. Martin,
298 U. S. 678, 56 S. Ct. 949, 80 L. ed. 1399 (1936), rehearing denied 298 U. S.
692, 56 S. Ct. 957, 80 L. ed. 1410 (1936); Dorrance's Estate, 309 Pa. 151, 163
A. 303 (1932), certiorari denied 287 U. S. 660, 53 S. Ct. 222, 77 L. ed. 570
(1932).
If the deceased taxpayer acquired a sufficient number of "domiciles" so that
taxes by all states claiming domicile would wipe out the estate there is apparently
chance for relief providing one of the states wishes to interplead the others.
See Texas v. Florida, 306 U. S. 398, 59 S. Ct. 563, 83 L. ed. 817 (1937).
See also Tweed and Sargent, Death and Taxes Are Certain-But What of
Domicile (1939) 53 H, v. L. Rmv. 68.
279, 293 (1942).
Ct. 207,
S. 287,
5BT 317
U. 309,
87 L.219,
ed. 87
at L.
291ed.(1942).
63 S.311,Ct.63atS.218,
Id. at
1945]
Presumably Justice Murphy is satisfied as a matter of law that no
bona fide domicile was acquired in Nevada, that the facts relating
thereto permit of only one construction, and that therefore there was
no issue of domicile to be left to a jury. When it is perceived that
domicile is necessarily predicated on intent and when it is further
acknowledged that intent is a matter of fact to be determined from
all the surrounding circumstances one may well question the soundness of Justice Murphy's conclusion as a matter of law although agreeing with it as a matter of fact. Further, the intent required is not the
intent the parties had on their return to North Carolina but the intent
they had before they ever did return, the intent on arrival in Nevada.
The fact that the parties returned after accomplishing their- purpose
is merely some evidence to be considered with other circumstances by a
fact finding body to aid it in determining the intent the parties had on
arrival in Nevada. It is by no means conclusive and certainly it is
possible, even though it may be improbable, that there was the intent
to remain indefinitely in Nevada on arrival there which was departed
from at the end of the six-week period.
THE
JACKSON DISSENT-FIRST
WILLIAMS
CASE
Before considering the objections of Justice Jackson to the majority
opinion it is well to note what he believes the Court's decision does.
"Itnullifies the power of each state to protect its own citizens
against dissolution of their marriages by the courts of other states
which have an easier system of divorce. It subjects every marriage to a
new infirmity, in that one dissatisfied spouse may choose a state of easy
divorce, in which neither party has ever lived, and there commence proceedings without personal service of process. The spouse remaining
within the state of domicile need never know of the proceedings ...
It is not an exaggeration to say that this decision repeals the divorce
laws of all the states and substitutes the law of Nevada as to all
58
narriages one of the parties to which can afford a short trip there."
Apparently Justice Jackson did not anticipate the second Williams
case. The matter to him seems to have been concluded by the majority
decision once and for all in favor of the dominance of the Nevada
decrees.
It is because the majority in the Haddock case rebelled against any
theory which would permit the divorce laws of one state to "repeal"
the laws of another that the Court held New York was not bound to
admit evidence of the Connecticut decree. It is because Justice Jackson is in sympathy with the majority view in Haddock that he dissents here. In fact he makes a considerable brief for the Haddock
case. He admits it first met disfavor among the legal scholars but
"Old.at 311, 63 S.Ct. at 219, 87 L.ed. at 293 (1942). (Italics our own.)
[Vol. 2.4
contends that the decision has stood as law for thirty-seven years and
that there is now no sound basis for overruling it. "The theoretical
reasons for the change are not convincing." 5 9
But, it is not only the interest of the state of matrimonial domicile
which concerns Justice Jackson. There are two individual parties to
the marriage "contract." The rights of one should not be frittered
away by the action of a state having no personal jurisdiction over that
party. A personal judgment cannot be rendered against an absent
party on a cause of action arising out of an ordinary commercial
contract without personal service of process. Why should Nevada be
permitted to destroy the matrimonial rights of the spouse remaining
in North Carolina without acquiring personal jurisdiction over that
spouse?
"I see no reason why the marriage contract, if such it be considered,
should be discriminated against, nor why a party to a marriage contract
should be more vulnerable to a foreign judgment without process than
a party to any other contract. I agree that the marriage contract is
different, but I should think the difference would be in its favor." 0 0
Although Justice Jackson does not predicate his dissent on lack of
domicile in Nevada, it is clear that he finds no domicile. In fact he
states the Nevada court only found residence and that residence is
not domicile. 6 ' As to the argument that North Carolina must recognize the Nevada decree as a part of the price of our Federal system
he says, "It is a price that we did not have to pay yesterday and that
we will have to pay tomorrow only because this Court has willed it
to be so today." 6 2 Departure from the application of stare decisis is
deplored. For the departure now, "Little justification is offered." 6
Finally in answer to the intensely practical consideration urged by
the majority, the possibility that failure to recognize the Nevada decrees
may lead to the bastardizing of children, Justice Jackson closes with
the curt statement, "In any event, I had supposed that our judicial
responsibility is for the regularity of the law, not for the regularity
of pedigrees."6 4
However conclusive Justice Jackson may have thought the majority
opinion to be it did carry within it a remand to the North Carolina
Supreme Court for proceedings not inconsistent therewith. Those
proceedings were clearly indicated. If the state of North Carolina
wished to continue its prosecution of the defendants it could not rely
59Id. at 316, 63 S. Ct. at 221, 87 L. ed. at 295 (1942). See supra note 22.
60 317 U. S. 287, 317, 63 S. Ct. 207, 222, 87 L. ed. 279, 296 (1942).
See supra p. 8 for majority view.
82317 U. S. 287, 323, 63 S. Ct. 207, 225, 87 L. ed. 279, 299 (1942).
63Id.
at 324, 63 S. Ct. at 225, 87 L. ed. at 299 (1942).
4
d. at 324, 63 S. Ct. at 225, 87 L. ed. at 300 (1942). (Italics added.)
1
19451
on the Haddock case. Domicile of the divorce suit plaintiffs in Nevada
would be sufficient to give them protection under the Nevada decrees.
On the basis of the record Nevada had found domicile, North Carolina
had made no finding one way or the other. What the position of the
defendants would be if "contrary to the findings of the Nevada court,
North Carolina finds that no bona fide domicil was acquired in
Nevada" 65 is left by the majority for determination when that situation is presented to it. The second trial resulted in passing on that
very question to the Supreme Court for decision.
THE SECOND TRIAL
November 29, 1943 sees the opening of the second trial. Almost
a year has gone by since the Supreme Court reversal and somewhat
less than three years since the original trial. The cast of characters
is not quite the same-Judge Ervin sits in place of Judge Sink, Mrs.
Williams has passed on to the Great Beyond and Mr. Hendrix, apparently still an optimist, has taken to himself another wife.0 6
As at the first trial, the state again produced the only witnesses.
The defendants did not take the stand. By stipulation the evidence
of Mrs. Williams given at the former trial was read into the record.
Mr. Hendrix testified to his marriage to Mrs. Hendrix and also that
he had remarried abotit, four months before the second trial. The
marriage certificate of Williams and Mrs. Hendrix in Nevada was
introduced in evidence and lastly five witnesses were called who testified generally to the fact that in the fall of 1940 the defendants were
living together as man and wife at Pineola, North Carolina.
Upon the conclusion of the state's case the defendants moved for
judgment as of nonsuit. The motions were denied. Defendants again
introduced the exemplified copies of the Nevada divorce proceedings
and the post card sent by Hendrix to his wife's attorney in Nevada.
Defendants' attorney then renewed his motion for judgment as of nonsuit and specifically relied on the overruling of the Haddock decision
by the United States Supreme Court in the first Williams case.
The motion was denied and Judge Ervin in a thirty-five page charge
in substance instructed the jury that the validity of the Nevada divorce
was dependent on whether or not the defendants had obtained a domi"Supra
note 40. of record p. 7 in 224 N. C. 183 shows that Hendrix testi;'The transcript
fied, "I brought a divorce action against the present Mrs. Williams since the first
trial of this case." The transcript doesn't show whether Hendrix actually obtained
a divorce but independent investigation reveals that 'Hendrix was granted a
divorce in May 1941 on the ground of adultery.
The marital difficulties of Mr. Hendrix might well make the subject of another
paper for it appears that since his divorce from the first Mrs. Hendrix in 1941
he has twice remarried and! as many times divorced. (Letter of Attorney William
H. Strickland, December 7, 1945.)
[Vol. 24
cile there. "Domicil," he said, "is that place in which [a person] has
voluntarily fixed his abode or habitation not for a mere special or
temporary purpose but with a present intention of making it his home
67
either permanently or for an indefinite or unlimited length of time."
The question of domicile in Nevada was squarely left to the jury. If
the defendants were domiciled there a verdict of not guilty was called
for, if not so domiciled a verdict of guilty was in order. The jury
found the defendants guilty.
Perhaps it was the change in judges, perhaps the United States
Supreme Court reversal of the earlier convictions was exerting an
indirect influence, or maybe time alone had softened the heart of the
law. Whatever be the reason the sentences imposed were considerably
.less severe-one to three years for Williams and eight to twenty-four
months for Mrs. Hendrix.
APPEAL TO STATE SUPREME COURT FOLLOWING SECOND TRIAL
On appeal to the State Supreme Court the convictions were affirmed.
Chief Justice Stacy wrote the opinion for an unanimous court. 68 He
declared that the former decision of the North Carolina Supreme Court
affirming the convictions following the first trial was "predicated primarily" on the theory that the Nevada decrees were not entitled to full
faith and credit because neither of the divorce suit defendants had
been served or entered an appearance in Nevada. "For this position
we relied upon the celebrated case of Haddock v. Haddock."69 "Secondarily," continued Chief Justice Stacy, "it was suggested that the evidence tended to show the defendants were not bona fide residents of
the State of Nevada." 70 However, this secondary reason he concedes
was abandoned by the State on appeal to the United States Supreme
Court. In addition, he agrees that in view of the general verdict at the
first trial we do not know if the jury found the defendants had acquired
a bona fide domicile or not.
"Even if the jury had found the defendants were domiciled in
Nevada, still under the doctrine of Haddock the divorce decrees, since
they were entered on constructive service might have been, and in fact
for this very reason were, held for naught in North Carolina. . . .To
sustain the conviction and the judgment upholding it, the State was
compelled to rely on the principle of the Haddock decision because
7
it was the main theory of the trial." '
From this comment by Chief justice Stacy any possible doubt as
to the theory relied upon by the North Carolina Supreme Court at
Transcript of record p. 63 in 224 N. C. 183.
68224
N. C. 183, 29 S. E. (2d) 744 (1944).
9Id.
at 187, 29 S.E. (2d) at 747 (1944).
'Old.
at 187,
S.E. (2d) at 747 (1944).
711Id. at 188, 29
29 S.E. (2d) at 748 (1944).
'
1945]
the time of the first appeal to it is entirely dispelled. Domicile, or no
domicile in Nevada, the result would have been the same in the- State
Court for lack of personal service was then the basis of decision. Now
that is abandoned perforce as a result"of the overruling of the Haddock
case. Domicile is the sole bone of contention. The fact of domicile
has now been tried out by the North Carolina trial court. The jury
by its verdict has found no domicile in Nevada. We are -therefore
faced with the very "different problem"7 2 which the United States
73
Supreme Court foresaw but refused to solve in the first appeal of it.
74
Chief Justice Stacy sees no difficulty in the solution. Bell v. Bell
had been relied on by the State. That case he finds is adequate authority
on which to support the convictions. He quotes therefrom, "No valid
divorce from the bond of matrimony can be decreed on constructive
service by the courts of a state in which neither party is domiciled."1 5
But what about the finding of "residence" (domicile) by the Nevada
court? That finding says Chief Justice Stacy is not conclusive. Thus
in the Bell case a husband bad obtained a divorce in Pennsylvania.
The divorce proceedings contained a recital that the plaintiff was domiciled in that state. The wife then sued the husband for divorce and
alimony in New York and was permitted to show lack of jurisdiction
in Pennsylvania by proof that the husband was in fact domiciled in
New York.
The Bell case was predicated on Thompson v. Whitman76 and
Chief Justice Stacy in turn relies on the Thompson case.
"It was held in Thompson v. Whitman ...that the full faith and
credit clause did not prevent an inquiry into the jurisdiction of the court
by which a judgment offered in evidence was rendered; that the record
of a judgment rendered in another state might be contradicted as to
the facts necessary to give the court jurisdiction, and, that if it should
appear such facts did not exist, the record would be a nullity,7 notwithstanding a recital in the judgment that such facts did exist."
We shall have occasion later to consider the Thompson case in
detail in connection with the second opinion of the United States
Supreme Court. It is enough at this point to note the basis for the
affirmance of the convictions by the North Carolina Supreme Court
on the second appeal to it. Chief Justice Stacy concludes:
7-317 U. S. 287, 292, 63 S. Ct. 207, 210, 87 L. ed. 279, 282 (1942) : "Ifthe
case had been tried and submitted on that issue (domicile) only, we would have
quite a different problem...
."
See also supra p. 11.
" 317 U. S.287, 302, 63 S.Ct. 207, 215, 87 L. ed. 279, 288 (1942).
7'181 U. S.175, 21 S. Ct. 551, 45 L. ed. 804 (1901).
7r224 N. C. 183, 192, 29 S. E. (2d) 744, 750 (1944).
7818 Wall. (U. S.) 457, 21 L. ed. 897 (1873).
224 N. C. 183, 193, 29 S. E. (2d) 744, 751 (1944).
[Vol. 24
"From a legal standpoint, it all comes to this: On the first appeal
the State relied on the case of Haddock v. Haddock. We were minded
to follow that case. It was overruled by the Supreme Court of the
United States. The State now relies on the case of Bell v. Bell. We
are disposed to follow this case." 78
SECOND APPEARANCE OF THE WILLIAMS CASE IN THE
UNITED STATES SUPREME COURT
A writ of certiorari having been again allowed, the United States
Supreme Court for a. second time had the fate of Williams and Mrs.
Hendrix before it. This time, however, fortune did not smile favorably on the defendants. Not that there was uniformity of judicial
opinion-far from it, simply that the dissenting voices of three Justices were unable to deter a majority of six from affirming the convictions. Justice Frankfurter speaks for the Court.79 It will be
recalled Justice Douglas had written the majority opinion in the first
case and that Justice Frankfurter had concurred in a separate opinion.
Now there is a parting of the ways. Instead of returning the compliment and concurring with his brother Justice Frankfurter, Justice
Douglas joins in the dissent of Justice Black. Justice Rutledge files
a separate dissent.
MAJORITY UNITED STATES SUPREME COURT OPINIONSECOND WILLIAMS CASE
In the first Williams case Justice Frankfurter stated the Nevada
decrees satisfied the requirements of the due process clause, that they
were "binding in Nevada upon the absent spouse" and that the question
was whether those judgments "unawsailable in the state which rendered
them" were "despite the demands of the full faith and credit clause null
and void elsewhere." 80 North Carolina, he then told us, had not challenged the power of Nevada to declare the marital status of its residents but instead had chosen to "disrespect" 8 1 Nevada's exertion of
such power. What "respect" North Carolina would be called upon
to give to the Nevada decrees if North Carolina found the defendants
had not been domiciled in Nevada was left undetermined.82 Would
the "respect" called for in that case require North Carolina to give
8
1d.
I at 193, 29 S. E. (2d) at 751 (1944).
"324 U. S. -, 65 S. Ct. 1092, 89 L. ed. 1123 (1945). [Ed. Note: All L. ed.
citations on the second Williams case are for the Advanced Opinions.]
80317 U. S. 287, 306, 63 S. Ct. 207, 217, 87 L. ed. 279, 290 (1942), mipra p. 13.
81317 U. S. 287, 307, 63 S. Ct. 207, 217, 87 L. ed. 279, 291 (1942).
82It is noteworthy that in both his concurring opinion in the first Williams
case and in his opinion for the Court in the second case Justice Frankfurter
emphasizes "respect" for a sister state's decisions. Justice Rutledge comments
on what he terms the shift in emphasis from "full faith and credit" to "respect"
in his dissent in the second Williams case, 65 S. Ct. 1092, 1106, 89 L. ed. 1123,
1138 (1945).
1945]
full faith and credit to the decrees?
-21
That question now squarely con-
fronts the court.
The full faith and credit clause 8 3 was implemented by an Act of
Congress in 1790. The statute provided that the records and judicial
proceedings of one state properly authenticated '"shall have such faith
and credit given them in every court within the United States as they
have by law or usage in the courts of the state from which they are
taken." 84
In 1813 both the Constitutional provision and the statute'were construed in Mills v. Duryea.85 The Supreme Court then declared that
the statute requires one state to give the "same faith and credit"8 6 to a
judgment of a sister state as it is gi-en in the state where rendered.
The action in the Mills case was brought in the District of Columbia
to recover the amount of a money judgment obtained in a New York
state court. A plea of "nil debet" was held bad on demurrer. Justice
Story speaking for the Court expressly rejected the defendant's contention that the New York judgment was only "prima facie"8 7 evidence
of liability.
Sixty years later in Thompson v. Whitmans8 the Supreme Court
said that the full faith and credit clause together with the statute of
1790 did not prevent the second state from looking into the jurisdiction
of the first state which rendered the judgment. Jurisdiction of a New
Jersey court in the Thompson case depended on. the location of the
plaintiff's sloop when seized by a New Jersey sheriff. If the sloop was
then in waters of Monmouth County, New Jersey, the court had jurisdiction to condemn, if not, no jurisdiction existed. The New Jersey
court found as a fact that the sloop had been seized in Monmouth
County waters and condemned it under a local statute. The plaintiff
then sued the sheriff for trespass to the sloop in a federal court in New
s'
Supra
note §687.
28. The full text of the statute
8428
USCA
is: "The acts of the legislature
of any State or Territory, or of any country subject to the jurisdiction of the
United States shall be authenticated by having the seals of such State, Territory,
or country affixed thereto. The records and judicial proceedings of the courts
of any State or Territory, or of any such country, shall be proved or admitted
in any other court within the United States, by the attestation of the clerk, and
the seal of the court annexed, if there be a seal, together with a certificate of
the judge, chief justice, or presiding magistrate, that the said attestation is in due
form. And the said records and judicial proceedings, so authenticated, shall have
such faith and credit given to them in every court within the United States as
they have by law or usage in the courts of the State from which they are taken."
" 7 Cranch (U. S.) 481, 3 L. ed. 411 (1813).
" Id. at 484, 3 L. ed. at 413 (1813).
81 Compare the charge of Judge Ervin at the second trial in the Williams case
in which he stated that the recitation in the Nevada record that the parties had
been bona fide residents in that state for the six weeks preceding the institution
of the divorce suits was "prima facie" evidence of domicile in that state but was
not binding on the jury. Transcript of record pp. 72-73 in 224 N. C. 183.
88 18 Wall. (U. S.) 457, 21 L. ed. 897 (1873).
[Vol. 24
York contending that the sloop was not in Monmouth County waters
when seized. The sheriff in defense offered in evidence the findings
and proceedings of the New Jersey court and claimed that they were
binding on the federal court in New York under the full faith and
credit clause of the Constitution. The United States Supreme Court
affirmed a judgment of the federal court which had permitted the
plaintiff to contest the location of the vessel as found by the New
Jersey court and which had charged the jury that the New Jersey
record was "only prima facie evidence of the facts therein stated."8 9
It is apparent that the decision in the second Williams case will
depend on whether the doctrine of Mills v. Duryea9O is to be applied
as stated therein or as materially modified by Thompson v. Whitman.91
If the divorce decrees are to be given the "same faith and credit"
in North Carolina as in Nevada where they are "unassailable" they
would be valid defenses. If on the other hand North Carolina is to be
free to question Nevada's jurisdiction, then irrespective. of the effect
the judgments have in Nevada they may be found not entitled to full
faith and credit, in North Carolina under the Thompson rule.
Justice Frankfurter approves of the Thompson case which he says
was the first to make a "sharp analysis" 9 2 of the full faith and credit
clause. Before the Thompson decision he declared "uncritical notions
about the scope of the clause had been expressed" 93 in Mills v. Duryea.
However, the doctrine of the latter cae giving to a judgment of one
state "the same credit, validity and effect" in every other state "which
it had in the state where it was pronounced .. .when put to the test
... was found to be too loose."' 94 Only if the state rendering the judgment had jurisdiction did the full faith and credit clause become operative. A judgment not founded on valid jurisdiction could not demand
"full faith and credit" in a sister state.9 5
Whether the Thompson case expresses the correct rule, whether
or not judgments of sister states may be collaterally attacked for lack
of jurisdiction is to Justice Frankfurter no longer an open question.
It is now "too late" to "deny the right" to impeach divorce decrees of
sister states by proof the court had no jurisdiction. "It was too late
more than forty years ago." 96
89Id. at
459, 21 L. ed. at 898 (1873).
Cranch (U.
S.) 481, 3 L. ed. 411 (1813).
9118 Wall. (U. S.) 457, 21 L. ed. 897 (1873).
S65 S. Ct. 1092 at 1094, 89 L. ed. 1123 at 1125 (1945).
3
1Id. at 1094, 89 L. ed. at 1125 (1945).
907
94 Ibid.
95
Ibid.
"Id. at 1095, 89 L. ed. at 1126. The right to impeach collaterally decrees of
sister states for lack of jurisdiction is currently being seriously questioned and
not without considerable force. See Corwin, Out-Haddocking Haddock (1945)
93 PA. L. Rav. 341 where the author describes the action of the majority in the
1945]
Having determined that the Nevada decrees may be collaterally
attacked if Nevada had no jurisdiction Justice Frankfurter then declares the jurisdictional requirement .
. "judicial power to grant a
divorce-jurisdiction strictly speaking-is founded on domicil ...
The domicil of one spouse within a state gives power to that state,
97
we have held, to dissolve a marriage wheresoever contracted."
So far the going is fairly easy. But now comes the real problem.
Assuming a judgment need not be given full faith and credit unless
rendered by a court having jurisdiction and assuming further 'that
jurisdiction in divorce cases depends on domicile of one of the spouses,
which tribunal has the power to finally adjudicate the question of
domicile? In fact, may any tribunal finally adjudicate that question?
Nevada has found the necessary domicile. Is that finding now to be
impeached by North Carolina? Should the Nevada finding of domicile
be entitled to full faith and credit in North Carolina?
Justice Frankfurter readily concedes that a jurisdictional question,
domicile here, cannot after a contest regarding the same be litigated as
between the parties. 98 Here, however, there was not only no contest in
Nevada, but North Carolina which seeks to enforce its law of bigamy
was not even a party to the Nevada proceedings. Therefore, Justice
Frankfurter concludes North Carolina should not be bound by a
Nevada finding of a jurisdictional fact.
"But those not parties to a litigation ought not to be foreclosed by
the interested actions of others; especially not a State which is concerned with the vindication of its own social policy and has no means,
certainly no effective means, to protect that interest against the selfish
action of those outside its borders. The State of domiciliary origin
should not be bound by an unfounded, even if not collusive, recital
in the record of a court of another State. As to the truth or existence
of a fact, like that of domicil, upon which depends the power to exert
judicial authority, a State not a party to the exertion of such judicial
authority in another State but seriously affected by it has a right when
asserting its own unquestioned authority, to ascertain the truth or
existence of that crucial fact." 99
second Willians case as adding another case to a line of decisions which proceed
"from an unwarranted assumption of power by the Court." Mills v. Duryea, says
Professor Corwin, "proceeded simply on the theory that the Act of 1790 meant
what it said." He points out that the dissent in Mills v. Duryea urged the very
same viewpoint later adopted in the Thompson case and now in the second
Williams case, namely that the jurisdiction of the court rendering the judgment
may be looked into by a sister state.
.. 65 S. Ct. 1092, 1095, 89 L. ed. 1123, 1126 (1945) citing the first Williams
decision, 317 U. S. 287, 63 S. Ct. 207, 87 L. ed. 279 (1942).
1- 65 S. Ct. 1092, 1095, 89 L. ed. 1123, 1126 (1945) citing Davis v. Davis, 305
U. S. 32, 59 S. Ct. 3, 83 L. ed. 26, 118 A. L. L 1518 (1938).
9965 S. Ct. 1092, 1095, 89 L. ed. 1123, 1126 (1945). Footnoting his opinion
at this point Justice Frankfurter said, "We have not here a situation where a
[Vol. 24
That the rule so declared may result in contradictory findings in
our various states is recognized by the court. However, we are told,
"... such conflict is inherent in the practical application of the concept of domicil in the context of our federal system."' 0 0 Justice
Frankfurter (as did Justice Murphy dissenting in the first Williams
case) here refers to those regrettable decisions which have resulted in
certain persons being obliged to pay taxes in more than one state because the taxing states each found the taxpayer domiciled within its
borders although each admitted their victims could have but one domicile.1 ° 1 In fact he states that what was said in Worcester County Trust
Co. v. Riley "is pertinent here." He quotes:
"Neither the Fourteenth Amendment nor the full faith and credit
clause requires uniformity in the decisions of the courts of different
states as to the place of domicil, where the exertion
of state power is
10 2
dependent upon domicil within its boundaries."
As to everything else but "the jurisdictional facts" on which the
divorce decree is founded the decree is conclusive, but to permit the
necessary finding of domicile by one state to foreclose all states in the
protection of their social institutions "would be intolerable."O1
If the Nevada court's finding on the question of domicile is not
entitled to full faith and credit elsewhere is it entitled to anything?
This question Justice Frankfurter answers in the affirmative. North
Carolina owes a "duty of respect" to the adjudication of Nevada. In
fact Justice Frankfurter goes even further and says:
"The fact that the Nevada Court found that they were domiciled
10 4
there is entitled to respect and more."'
Was that respect and whatever in addition to respect must be given
the Nevada decree accorded it by North Carolina?105 Justice Frankfurter finds that it was. The trial judge had told the jury the Nevada
decree was "prima facie evidence" ;106 the issue of fact, domicile or
no domicile, was "left for fair determination"' 1 7 and the finding adstate disregards the adjudication of another state on the issue of domicil squarely
litigated in a truly adversary proceeding."
Does the Justice mean to infer that a different result would follow if the
parties had litigated the jurisdictional question? Even had they done so the
State of North Carolina would not have been represented.
10065 S. Ct. 1092, 1095, 89 L. ed. 1123, 1127 (1945).
10' See supra note 55.
..
0 65 S. Ct. 1092, 1096, 89 L. ed. 1123, 1127 (1945).
Ibid.
104 65 S. Ct. 1092 at 1097, 89 L. ed. 1123 at 1128 (1945).
(Italics our own.)
What Justice Frankfurter meant to include in the word "more" is not
declared. We can only say that apparently he is satisfied North Carolina gave
203
"respect and more."
106 65 S. Ct. 1092, 1098, 89 L. ed. 1123, 1129 (1945).
0
2 Id. at 1097, 89 L. ed. at 1128 (1945).
19451
verse to that of Nevada was "amply supported in evidence."' 08 North
Carolina, we are told, had given "appropriateweight .. .to the finding
of domicil in the Nevada decrees." 10 9
As to Williams and Mrs. Hendrix . . . well, it is indeed too bad
that they now face a jail sentence, but Justice Frankfurter concludes
that after all "they assumed the risk that this Court would find that
North Carolina justifiably concluded they had not been domiciled in
Nevada."" 0
Summing up the majority opinion in the second Williams case it
appears that:
1. As in the first Williams case, domicile of one of the parties is
the necessary jurisdictional element and the wrong or fault of the
person establishing such domicile is immaterial to jurisdiction.
2. The Full Faith and Credit Clause does not prevent an inquiry
into the jurisdiction of the court whose judgment is relied on in
another state even though the record purports to show jurisdiction.
3. Although Nevada found that Williams and Mrs. Hendrix were
domiciled in Nevada and in the light thereof could grant a decree of
divorce "unassailable""' 1 in that state such finding of domicile was not
conclusive on North Carolina.
4. North Carolina, in the protection of its social institutions, may
independently examine into the question of the Nevada court's jurisdiction, that is, it may for itself determine if the parties obtaining the
divorce decrees were domiciled in Nevada. In doing so, however, it
may not disregard the Nevada decrees but must accord them "respect."
5. The duty of "respect" is satisfied where the fact finding body in
North Carolina is instructed that the Nevada decrees are "prima facie"
evidence of domicile in that state and where the finding of lack of
domicile by the North Carolina jury is "amply supported by evidence"
and the result of "fair determination."
THE MURPHY CONCURRING OPINION-SECOND WILLIAMS CASE
justice Murphy in a short concurring opinion joined in by the
Chief Justice and Justice Jackson is apparently firmly convinced that
the alleged domicile in Nevada was acquired fraudulently, deceitfully
or in bad faith. Such, in any event, is the interpretation he gives to
108Ibid.
209 65 S. Ct. 1092, 1098, 89 L. ed. 1123, 1129 (1945). (Italics our own.)
...
Id.at 1099, 89 L. ed. at 1130 (1945). (Italics our own.)
...
The Nevada decrees were characterized as "unassailable" in that state
by Justice Frankfurter in his concurring opinion in the first Williams case.
See supra p. 13. That adjective is not used by the Justice in his opinion for the
majority of the Court in the second case. There is no indication in the opinion,
however, that the decrees could be assailed in Nevada which state he reiterates
"found that petitioners were domiciled" within its borders. 65 S. Ct. 1092, 1099,
89 L. ed. 1123, 1131 (1945). The result in the second Williams case will be the
same even though the Court should find enough in the Nevada record to support
the jurisdictional finding of domicile by that state. 65 S. Ct. 1092, 1097, 89 L. ed.
1123, 1128 (1945).
(Vol. 24
the finding of the North Carolina jury which conclusion he says is supported by "overwhelming evidence satisfying whatever standard of
proof may be propounded.".
2
He finds no "startling or dangerous implications in the judg3
ment."11
"All of the uncontested divorces that have ever been granted in the
forty-eight states are as secure today as they were yesterday or as they
were before our previous decision in this case. Those based upon fraudulent domicils are now and always have been subject to later reexamination with possible serious consequences." 14
Justice Murphy says it is "unfortunate" that Williams and Mrs.
Hendrix are to be imprisoned for acts done doubtless under advice of
council, but after all, he concludes, they had been duly warned by
North Carolina's own judicial pronouncements in State v. Herron.115
THE RUTLEDGE DISSENT-SECOND
WILLIAMS CASE
Justice Rutledge filed a very vigorous dissent. His primary complaint is that the majority decision makes the stability of the marriage
relation depend on "caprice of juries.""8 In fact, he says, under the
majority view the same jury could have found one defendant guilty
and the other innocent or if the cases had been tried separately two
North Carolina juries could pronounce opposite results upon "evidence
unvaried by a hair." 117 If so, he concludes, "by the court's test we
could do nothing but sustain the contradictory findings." 118
Admittedly, justice Rutledge says, under the majority decision the
parties are divorced in Nevada and married in North Carolina. What
about the other forty-six states? The majority did not say whether
the other forty-six were obliged to give full faith and credit to the
Nevada decree. It only determined that "The state of domiciliary origin should not be bound." 119 If and when questions relating to the
validity of the Nevada divorce should arise in states other than North
Carolina are those states to be free to reexamine the matter of domicile
in Nevada?
justice Rutledge resents the suggestion made especially by Justice
Murphy that the Nevada decrees were obtained by fraud. "The North
Carolina verdict and judgment do not purport to rest on any finding
11265 S. Ct. 1092, 1100, 89 L. ed. 1123, 1132 (1945).
1
Id. at 1101, 89 L.ed. at 1133 (1945).
'Id. at 1101, 89 L. ed. at 1133 (1945).
Id. See supra note 8. One may seriously doubt that either of the defendants
ever heard of State v. Herron. The Justice's presumption is probably contrary
to the fact.
11-65 S. Ct. 1092, 1102, 89 L. ed. 1123, 1134 (1945).
11
7 Ibid.
118 Ibid.
11965 S. Ct. 1092, 1103, 89 L. ed. 1123, 1135 (1945).
1
15
1945]
of fraud."1 20 What the North Carolina jury did was to find as a fact
that there was no domicile in Nevada. This it determined after having
the benefit of a circunstance that Nevada did not have, namely the
return of the parties to North Carolina. This proof of return was not,
Justice Rutledge states, admitted to attack the Nevada decree but admitted solely for the purpose of relitigating "the same issue that decree
21
had determined upon adequate evidence."'
As Justice Rutledge sees the case, "North Carolina's action comes
down to sheer denial of faith and credit to Nevada's law and policy,
not merely to her judgment" and the decision of the majority as
"approval of this denial."' 122 He finds no basis for excluding marriage
and divorce matters from the operation of the full faith and credit
clause. He concludes, however, that under the majority opinion the
full faith and credit clause no longer applies as to such matters but
that it is now sufficient merely to "compel 'respect' or something less
than faith and credit whenever a jury concludes 'not unreasonably' by
ultimate inference from the always conflicting circumstantial evidence
123
that it should not apply."'
Justice Rutledge discusses at considerable length the transitory
nature of domicile, how in the time it takes a person to think he may
acquire a new domicile in the place he then is by merely determining
then to make it his home either permanently or for an indefinite time
in the future.
"No other connection of permanence is required. All of his belongings, his business, his family, his established interests and intimate
relations may remain where they have always been. Yet if he is but
physically present elsewhere, without even hag or baggage and underin a moment he has created a new domicil though
goes the mental flash, 124
hardly a new home."'
To Justice Rutledge there is no greater "legal gamble"'125 than
betting on the outcome of a jury finding a domicile. Conflicting circumstances from which accordingly conflicting inferences of fact may
be drawn are rarely absent in cases of importance. The majority,
1
.Id. at 1104, 89 L. ed. at 1136 (1945). Domicile having as an essential ele-
ment the intent of the party, it is apparent that a jury in North Carolina would
be influenced by the fact' of return as bearing on the nature of the original intent.
Theoretically, no such influence would be exercised on a fact finding body in
Nevada which is called upon to decide the question of domicile before the return
takes place. Nevertheless, one may properly ask if there are any Judges in
Nevada so naive as to believe that the thousands who file their petitions after six
weeks of residence in that state really intend to stay there! If there are such,
those Judges truly lack the art of "judicial notice."
112165 S. Ct. 1092, 1105, 89 L. ed. 1123, 1137 (1945).
I" Id. at 1105, 89 L. ed. at 1138 (1945).
22Id. at 1106, 89 L. ed. at 1138 (1945).
"2'Id.at 1108, 89 L. ed. at 1141 (1945).
225 Ibid.
28
[Vol.24
while knowing how uncertain the determination of domicile is, how
varied the opinion of juries may be as to the subjective intent necessary
to acquire domicile, nevertheless, accepts this, to Justice Rutledge,
most undesirable test as the basis for permitting North Carolina to
refuse full faith and credit to Nevada's decrees. One thing as to
divorce is now made certain, namely its uncertainty.
THE BLACK DISSENT, DOUGLAS CONCURRING-SECOND
WILLIAMS CASE
Justice Black emphasizes the Nevada marriage. In Nevada the
marriage was legal. How then can North Carolina hold the defendants
guilty of bigamy if they are living together in accordance with a valid
marriage in Nevada? What basis, asks Justice Black, is there for
North Carolina not giving full faith and credit to what is a legal
marriage in Nevada? To permit such action is to go contra to the
established rule that the legality of a marriage is determined by the
law of the place of contracting. But the validity of the marriage depends on capacity of the parties, hence justice Black says we must
go back to the divorce decrees in Nevada to determine whether they
were such as would give capacity to the parties to marry in Nevada.
Those decrees he finds were valid in Nevada. Consequently, as to
Nevada, the decrees had the effect of giving the parties capacity to
remarry there which they did. Now North Carolina is permitted to
disregard Nevada's findings simply because a North Carolina jury does
not agree that domicile existed in Nevada. justice Black concludes
that the majority by sustaining North Carolina's judgment has in effect
declared the Nevada decree "void. '12 6 Not only does justice Black
object to permitting a North Carolina jury to find no domicile when
Nevada had found domicile but he cannot approve that portion of the
trial court's charge which placed upon the defendants the burden of
proving their domicile in Nevada. "The burden of proving the single
127
issue upon which petitioner's liberty depended was cast upon them."
2665 S. Ct. 1092, 1113, 89 L. ed. 1123, 1146 (1945). Justice Black places
the word "void" in quotations. There is nothing in the majority opinion which
declares the Nevada decrees void in Nevada.
22765 S. Ct. 1092, 1116, 89 L. ed. 1123, 1150 (1945). Prior to the Williams
case the general rule was that the burden of proof is on the person attacking
the foreign divorce decree to establish lack of jurisdiction. See Hansen v. Hansen,
255 App. Div. (N. Y.) 1016, 8 N. Y. Supp. (2d) 655 (1938); Commonwealth
ex rel. Cronhardt v. Cronhardt, 127 Pa. Super. 501, 193 A. 484 (1937).
In Essenwein v. Commonwealth of Pennsylvania ex rel. Essenwein, 65 S. Ct.
1118, 89 L. ed. 1152 (1945) decided the same day as the second Williams case
the court said, "The burden is on the litigant who would escape the operation
of a judgment decreed in another state. . . . Respondent sustained her burden
of impeaching the foundation of the Nevada decree on the jurisdictional prerequisite of bona fide domicil."
In the Essenwein case a husband sought to avoid a Pennsylvania support order
by introducing a Nevada decree he had obtained after the order of support.
Under the Pennsylvania law a valid divorce would have relieved the husband of
19451
The defendant in a bigamy action must now, says Justice Black prove
that the court which divorced him was not mistaken in "resolving facts
28
as to domicile."'
Under the majority decision no "final determination" can be made
by any court as to its own "jurisdiction" in an uncontested divorce
case. "And so far as I can tell, no other court can ever finally determine
this question."' 29 In truth, adds the Justice, "A man might be tried
for bigamy in two or more states. He might be convicted in one or
both or all I suppose."' 30 Whether or not there will be a conviction
will depend on the ability of the party involved to "guess" at what "may
ultimately be the legal. and factual conclusion resulting from a consideration of two of the most uncertain word symbols in all the judicial
lexicon, 'jurisdiction' and 'domicil.' ,,s'
It is to Justice Black the
equivalent of sending people "to prison for lacking the clairvoyant gift
of prophesying when one judge or jury will upset the findings of fact
32
made by another.'
Justice Black further objects to the conviction of the defendants
for the reasoi that at the time of the second trial it appeared that the
first Mrs. Williams had died and Mr. Hendrix had remarried. This
being so, Justice Black finds no substantial interest of the state of
North Carolina at stake which warrants sending the defendants to jail.
The argument amounts to this, since Mrs. Williams No. 1 is dead she
cannot object to Mrs. Williams No. 2, and since Mr. Hendrix has
himself remarried he cannot object to the remarriage of the first Mrs.
-endrix. 133 Therefore, Justice Black concludes the criminal proceedings brought by the state of North Carolina are out of order.
It is apparent throughout the reading of Justice Black's opinion that
he is a proponent of easy divorce. In fact he implies that the Court
has sustained the convictions because the majority looks upon divorces
as an "unmitigated evil."' 134 His dissent has been the subject of relentless criticism at the hands of one reviewer' 35 and has been hailed
the duty to support. The decision in the Pennsylvania state court went against
the husband, the court finding that there had been no domicile acquired by him
in Nevada.
228 65 S. Ct. 1092, 1116, 89 L. ed. 1123, 1159 (1945).
"'.
Id.at 1117, 89 L. ed. at 1151 (1945).
Ibid.
" Ibid.
130
65 S. Ct. 1092, 1117, 89 L. ed. 1123, 1152 (1945).
...
Id. at 1112, 89 L. ed. at 1145 (1945).
1' Id. at 1116, 89 L. ed. at 1150 (1945). "Implicit in the majority of the
opinions rendered by this and other courts, which whether designedly or not,
have set up obstacles to the procurement of divorces, is the assumption that
divorces are an unmitigated evil, and that the law can and should force unwilling
to live with each other."
persons
Isi See Powell, And Repent at Leisure (19455 58 HARv. L, Rv. 930.
282
[Vol. 24
as effectively exposing the "historical and logical weakness" of Justice
Frankfurter's majority opinion by another.1 8 6
SERious QuEsTIoNs REMAIN
Every attorney is familiar with the judicial technique of restricting
a former decision "to its own peculiar facts." This process so conveniently engaged in by judges when they find it desirable to escape the
effect of their earlier broad declarations of law has more than once
confounded lawyers who have endeavored logically to forecast the
course of future decision. Whether the Williams cases will receive
such treatment at a later date remains to be seen.
We do know, however, both from past experience and the Williams
litigation that attorneys cannot be too cautious when called upon to predict court action in the field of divorce. Whether we approve or disapprove the Williams decisions one thing is certain-they have not simplified the lawyer's task.18 7 The path ahead is far from clear. One can conceive of numerous situations not "on all fours" with either the first or
second Williams case that must await solution. For example:
1. Does the rule of the first Williams case apply when the spouse
left at home seeks support ?1a8
2. Does the rule of the second Williams case permitting the state
of matrimonial domicile to question the jurisdictional fact apply to the
other forty-six states as well?
3. Could the spouse left at home rely on the Nevada divorce if he
did not contest it and remarry on the faith of it, or would he then
too be guilty of bigamy?
4. Are property rights to be determined by the Nevada decree or
by a local jury reinquiring into the fact or domicile?
5. If there had been a contest between the spouses in Nevada on
the question of jurisdiction, would that bar either the state of matrimonial domicile or any other state from relitigating the jurisdictional
fact? Would it bar some other person claiming property interests?
""See Corwin, Out-Haddocking Haddock (1945) 93 PA. L. R,,. 341.
...
Ithas not been the purpose of the author to "take sides" but rather to tell
the story for the benefit of those who have not had the time or opportunity to read
the hundreds of pages making up the trial and appellate records of this most
celebrated case.
Those who are in favor of the majority opinion will find pleasant reading in
Professor Thomas Reed Powell's article, And Repent at Leisure, supra note
135. A brief review of that article will be found in (1945) 31 AMZmcAN BAR
AssociATioN JoutxAL 599. Readers who are in sympathy with the dissenting
Justices will find solace in Professor Edward S. Corwin's article, Out-Haddocking
Haddock, supra note 136. Of course one would expect the Nevada State Bar
Journal to find fault with the majority opinion. See Platt, Nevada Divorces and
the Supreme
Court (1945) 10 NEvADA STATE BAR JoURNAL 170.
8
..
Justice Douglas in his concurring opinion in the Essenwein case (supra
note 127) decided the day of the second Williams decision raises a doubt as to
this and says (65 S. Ct. 1118, 1120, 89 L. ed. 1152, 1154 (1945)), "But I am not
convinced that in absence of an appearance or personal service the decree need
be given full faith and credit when it comes to maintenance or support of the
other spouse or the children."
19451
These and other questions will have to await later decisions of the
Supreme Court. Whether or not those decisions will result in clearing
up the crystal maze of divorce law we cannot say, but if the future is
to be judged by the past the hope of attaining reasonable certainty in
this most vital field of human relations is indeed very, very dim.
The nation will owe a debt of gratitude to both Mr. Williams and
Mrs. Hendrix if as a result of their protracted litigation public interest1 8 9 is aroused sufficiently to bring about the adoption of uniform
divorce legislation buttressed if necessary by Constitutional Amendment.
Meanwhile the United States Supreme Court has in effect served
notice that divorces obtained in states operating what are commonly
termed "divorce mills" are of little value. Persons wishing to be
certain of their marital status will shy away from Nevada decrees.
Those who now have them are searching about for ways to secure
140
their "divorced" status.
"' The public interest aroused by the Williams case has been tremendous.
Sunday newspaper supplements have carried column after column depicting the
confused state of our divorce law. For a graphic and pictorial account see Life
Magazine, Vol. 19, No. 10, p. 86, issue of September 3, 1945.
"I Consider for example the situation depicted in the following news item
taken from the December 9, 1945 issue of the Charlotte Observer of Charlotte,
North Carolina.
COURT RULING
ASKED, SO VISIT
MAY BE MADE
WASHINGTON, Dec. 7.-(AP)
-Mr. and Mrs. Guy' Dixon Waters
wish to visit relatives in North
Carolina so they went to court
about it yesterday.
They asked the District court to
declare valid the divorces they re-
ceived from their respective previous spouses in Reno, Nev., in September, 1943, or to issue new divorce decrees.
Otherwise, they said, they feared
they might be arrested in North
Carolina on bigamy charges in
view of the Supreme court's deci-
sion last May upholding conviction on bigamy charges of a North
Carolina couple who obtained Reno
divorces, married each other and
returned to the state.
They said they had relatives in
North Carolina they had not seen
for two years.
EPILOGUE
(Vol. 24
141
Whatever else may be said about the Williams case it is sure to
delight the dramatist. Let us pull aside the curtain for the Epilogue
and look in on Mr. Williams and Mrs. Hendrix. We should expect to
find them solemnly repenting their transgressions surrounded by gray
prison walls. But this does not look like a prison-it is a comfortable
home in Pineola, North Carolina, and there seated by the fireside are
none other than Mr. Williams and his Las Vegas bride. We cannot
call her Mrs. Hendrix for she is now not only Mrs. Williams in Nevada
but Mrs. Williams in North Carolina as well, a second marriage ceremony having taken place at Lenoir, North Carolina, in August 1945.142
And what has become of the jail sentences? Our actors show no
signs of palor from confinement, and for good reason, for not a single
day of the sentences was ever served. North Carolina's dignity had
been vindicated by the United States Supreme Court and North Carolina, with all the grace that becomes that State, thereupon released our
friends on parole! Perhaps at some later date a writer on the Williams
cases will entitle his paper-"And They Lived Happily Ever After."
"'For the factual information contained in this Epilogue the author acknowledges his indebtedness to Mr. William H. Strickland, attorney for Mr.
Williams and Mrs. Hendrix, Mr. Foil Essick, Chief of Supervision of the Office
of Commissioner of Paroles, Raleigh, North Carolina, and Mr. J. E. Tucker,
Assistant Attorney General of North Carolina, Department of Justice, Raleigh,
North Carolina.
12 The jail sentences of the defendants were to begin on September 20, 1945.
Upon the recommendation of the Office of Commissioner of Paroles, Raleigh,
North Carolina the parties married on August 18, 1945. Following the marriage
the paroles were granted.

So Your Client Wants a Divorce

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SPEECH OPPOSING SB245: My name is Zuzana Kukol. I have